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Grooming: a cybercrime with many conducts and few legislation

Julkaisupäivä
24.4.2013 12:30

As part of the concerns we are dealing with those who participate in this new forum on Cybercrime, we have found that there is a conduct which, despite being more common than we might suppose, surprisingly has not yet received the importance that it deserves within the criminal legislation of different countries, especially in Latin America.

We are talking about the "grooming", conduct involving harassment or seduction of a minor by an adult to obtain some kind of sexual gratification, or as an act preparatory to a personal encounter with the victim.

“Online grooming is the process by which an individual befriends a young person for online sexual contact, sometimes with the involvement of webcams that can allow ‘sharing’ of the exploitation among networks of child sex abusers, and sometimes extending to a physical meeting to commit sexual abuse.” (page 2)

Indeed, the phenomenon of the grooming, as cybercrime against minors, covers certain behaviors that are well defined. On the one hand, the adult or groomer usually use a fake profile in a social network, chat rooms or website where he can appear as minor person, as a manner to try to break down any barrier of mistrust that the harassed child could present. In principle, that fake profile (impersonation or phishing), is not a crime, but a preparatory act (in accordance with the penal process of the iter criminis) to commit a possible crime. (However, impersonation is a crime in some countries, for example, Costa Rica, in accordance with article 230 of the Penal Code of 1970. In addition, the penalty increases to eight years when the victim is a minor, as happened recently).

The one who impersonate the identity of a natural person, legal or a trademark in any social network, website, electronic or technological means of information will be punished with prison of one to three years.” (Free translation)

Once the adult has created the fake profile which pretends to be a minor, he continues the process of seduction or harassment. This is the approach to the potential victim, especially with social engineering techniques such as stimulating obtaining information about the child, either about their personal interests, hobbies, books, music, education and others themes. Equally, the adult could use other means to get information indirectly, through social networks where the minor participates, friends of the child having contact in line with him; his education center, neighborhood, etc. Even here we could not say that we are facing a crime, but those behaviors will be also a part of the preparatory acts for the possible commission of a future crime. It must be taken into account that a groomer has an average of 200 children on his list of potential harassed, according with the UNICEF report.

A third detectable behavior is the approach to the child using any tactic of black-mail or seduction, as it can be the casual conversation by remote means (chats, IRC programs, social networks, etc.), manipulation of themes, exchange of files, games, text, movies, until the sending of erotic dialogues or pornographic images. This situation can degenerate then in a psychological domain on the child to achieve the manipulator adult’s desires, which may become the realization of acts of sexual nature, as show her naked body in front of the Web camera, obtain photos or films of the minor and eventually seek a personal encounter with him who may end up in sexual abuse or rape.

Now, note that we are not properly in front of a production or dissemination of pornography, corruption of minors or rape scenarios, but this is a process related to those other crimes. Grooming is not an innovative behavior (frequently there are visible cases and a black cypher) which mostly is not criminalized in the Penal Codes. Such conduct, as we have seen, is the seduction and sexual manipulation on a minor through computer systems, mainly for the purpose of production of pornography or sexual abuse. The existence of a figure of this nature is justified for several reasons and circumstances, among others, sexual child indemnity, access generalized to telematics media, the ease to access public places in the Internet that minors not see as dangerous, the lack of security and warnings to protect potential victims, as well as the proliferation of adults seeking for sexual satisfaction in the Internet or Web services that allow them to maintain their anonymity, and intentional behaviors that are directed against a particularly vulnerable age group.

Each Party shall take the necessary legislative or other measures to criminalise the intentional proposal, through information and communication technologies, of an adult to meet a child who has not reached the age set in application of Article 18, paragraph 2, for the purpose of committing any of the offences established in accordance with Article 18, paragraph 1.a, or Article 20, paragraph 1.a, against him or her, where this proposal has been followed by material acts leading to such a meeting.

In spite of this risky scenario for the minors, we have found that the countries who penalize grooming are very few, which is an obstacle to discourage this conduct among the paedophiles. It seems to be that the institutional tendency in the countries is rather to prevent its commission and to alert the parents, teachers and other ones in charge so they and the minors are who will learn to identify risk situations. The UNICEF’s report about the safety of children online previously mentioned makes echo of this preoccupation on the lack of legislation that punishes such conduct, and the lack of registries or data bases with details on the offenders:

In many countries, this activity is not yet a criminal offence and therefore no records are kept relating to such behaviour. Even among countries where grooming has been criminalized, there are no coordinated databases that provide details of the offenders. This represents not only a huge gap in knowledge, but also in child protection.” (Page 2)

We can find a good example of legislation on this matter in the article 183 bis of the Spain’s Penal Code. Its content, according with the reform made in June, 2010, responds without a doubt to the order contents in article 23 of the Convention of Lanzarote. Besides, it talks about the possible commission of other felonies such sexual abuses, sexual aggressions, exhibition, manufacture or distribution of pornography or possession of child pornography, among others behaviors:

“The one that through Internet, the telephone or any other technology of the information and the communication contacts a minor of thirteen years and proposes to arrange an encounter with him in order to commit anyone of the crimes described in arts. 178 to 183 and 189, whenever such proposal is accompanied by material acts directed to the approach, will be punished with penalty of one to three years of prison or fine of twelve twenty-four months, without prejudice of the punishment corresponding to the crimes in their case committed. The penalties will prevail in their superior half when the approach is obtained by means of coaction, intimidation or deceit.” (Free translation)

In Latin America we have found only two countries that incorporate grooming as a part of their penal legislation: Dominican Republic and Costa Rica.

Article 23. - Sexual Attack. The fact to exert a sexual attack against a boy, girl, adolescent, incapacitated or alienated mental, by means of the use of an information system or any of its components, will be sanctioned with the penalty of three to ten years of prison and fines from two hundred five times the minimum salary. (Free translation)

In Costa Rica there is a recent reform on article 167 of the Penal Code, by the law 9048 of July 10th, 2012. It is a reform of the penal type of minors corruption where is introduced a punishment in case of an adult who by means of the use of social networks or any computer system or telematic means looks for encounter of sexual character with minors or incapable people.

“Article 167. - Corruption

Who maintains or promotes the corruption of a minor or incapable person, with erotic, pornographic or obscene intentions, in exhibitions or public or private spectacles, will be sanctioned with prison of three to eight years, although the minor or incapable person allows it

The penalty will be prison of four to ten years, if the actor, using the social networks or any other computer system or telematic means, or another mass media, looks for encounter of sexual character for himself, a third person or groups, with a minor or incapable person; or if the offender uses these people to promote corruption or if he forces them to make perverse, premature or excessive sexual acts, although the victim allows to participate in them or to see execute them.” (Free translation)

The one who, by any means, establish communications of sexual or erotic content, either to include or not images, videos, text or audio, with a person under fifteen years of age or incapable, will be punished with prison from one to three years

The same penalty will be imposed to the one who impersonating the identity of a third person or through the use of a false identity, by any means, try to establish communications of sexual or erotic content, including or not images, video, text or audio, with a person under age or incapable.

In the behaviors described in the preceding two paragraphs, when the actor try to make a personal encounter in a physical place with a minor or incapable, the penalty will be of two to four years of prison.” (Free translation)

So this is the very few existing legislation in Latin America. Other countries as Chile still has the penalty of grooming like a draft law, whereas in the Argentine Republic the Senate of the Nation approved in November 2nd, 2011, a draft law to include an article 128 bis to the Argentine Penal Code where penalizes this form of harassment.

“The one that contacts with a minor person by means of Internet, the telephone or any other technology of data transmission, in order to execute any crime against the sexual integrity, will be punished with prison of six months to four years.” (Free translation)

However, in the Argentine Republic’s case, this initiative still must be ratified by the Chamber of Deputies, legislative body that has time until next October 2013 for the law’s definitive approval.

In conclusion, there are no sufficient legislative initiatives yet to penalize a cybercrime that more and more tends to grow up and to be more common.